Defendant was suspected by a Craigslist post of planning to shoot up a shopping mall, and the police came to his house after getting his location from Craigslist. Once inside the house by consent, manipulating a computer mouse to get past the screen saver was a search under Hicks. United States v. Musgrove, 845 F. Supp. 2d 932 (E.D. Wis. 2011), (adopted 2011 U.S. Dist. LEXIS 108932 (E.D. Wis. September 16, 2011)):
Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer's manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir. 2010)(citing Platteville Area Apt. Ass'n v. City of Platteville, 179 F.3d 574, 580 (7th Cir. 1999)). The Court therefore recommends that the defendant's Facebook wall be suppressed.
[Orin Kerr, Taking A Computer Out of Screensaver Mode to See Suspect’s Facebook Wall Is a Fourth Amendment Search on Volokh Conspiracy noting this post; then A New Fourth Amendment Concern: "Don't Touch That Mousepad!" by David Stout on Main Justice noting Kerr; then You Want to Click That Mouse? Bite Me, Get a Warrant! on Above the Law noting Kerr.]
Defendant was strip searched with reasonable suspicion at the St. Croix airport Customs point for flights to Puerto Rico. A quantity of cocaine was found in his underwear. After a brief investigation, there was also reasonable suspicion for search of his traveling companion who succeeded in getting past Customs into the sterile area at the airport. A dog search found cocaine hidden in the bathroom and the dog alerted on the companion’s pants. The border search was reasonable as to both. United States v. Barrett, 2011 U.S. Dist. LEXIS 107956 (D. V.I. September 22, 2011).*
Standing by watching a search and not objecting is an important factor in consent on the totality [which I don’t buy at all as contrary to human experience and common sense]. United States v. Khaleel, 2011 U.S. Dist. LEXIS 106955 (N.D. Iowa September 20, 2011).*
The totality of circumstances showed consent. “Defendants ‘can, and often do, consent to a search even when it must be clear to them that incriminating evidence will be disclosed.’ United States v. Price, 599 F.2d 494, 503 (2d Cir. 1979).” United States v. Bourne, 2011 U.S. Dist. LEXIS 107530 (E.D. N.Y. September 23, 2011).*
Because the Anchorage inventory policy only permitted inventory of things in plain view, looking under a bandana in the car and finding a gun was not valid as an inventory, so the gun was suppressed. However, his arrest still would have led to his search at the jail, so the bullets found on his person were not suppressed. United States v. Vickers, 2011 U.S. Dist. LEXIS 107692 (D. Alaska September 23, 2011).*
Officers were invited into the residence on their request, and they had probable cause to arrest defendant. A co-occupant granted them consent to search. United States v. Zack, 2011 U.S. Dist. LEXIS 107509 (E.D. Wis. September 21, 2011).*
Defendant questioned the timing of the search and his arrest. “The Court is unaware of any law that dictates that a search warrant must be executed at a time that is most convenient to the owner or occupant of a premises.” United States v. Cardenas, 2010 U.S. Dist. LEXIS 143750 (N.D. Ohio September 21, 2010), R&R 2011 U.S. Dist. LEXIS 77791 (N.D. Ohio May 5, 2011):
The defendant suggests that his seizure was unnecessary because the officers deliberately delayed in executing the search warrant until he had returned from his errands. Yet, he concedes that agents had only obtained the warrant shortly before the defendant had returned, and had no legal justification to enter his premises prior to obtaining the warrant. The Court is unaware of any law that dictates that a search warrant must be executed at a time that is most convenient to the owner or occupant of a premises.
Even so, Summers expressly recognized that the government's interest “in the orderly completion of the search” is often “facilitated” when “the occupants of premises are present.” 452 U.S. at 703. In light of the fact that the warrant allowed for execution “in the daytime 6:00 am to 10:00 pm [...] on or before September 21, 2010,” officers did nothing improper by executing the warrant after the defendant returned. See generally, United States v. Cochran, 939 F.2d 337 (6th Cir. 1991) (agents executing search warrant may require occupant who has departed the premises to be searched to re-enter residence and remain there while the search is conducted); United States v. Head, 216 Fed. Appx. 543 (6th Cir. 2007) (officers properly apprehended and detained the defendant during a search of her residence after she had left).
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)